CONTENTS v01. 18, NO. 10 FEATURE ARTICLES - Voice For The ...

with later proof. The term "collateral"refers to facts which have no relevance tothe proceeding other than to attack credibilityofthe witness by contradiction. See,e.g., Flanne~y v. State, 676 S.W.2d 369,370 (Tex.Cr.App. 1984). There, thedefendantwas charged with murdering the manaccused of raping his daughter. The courtheld it improper for the prosecutor to introducetestimonytocoutradict thedaughter'sdenial on cross-examination that she hadtold the police that she had orgasms duringthe attack. Whether she reported that shehad orgasms was a collateral matter, andcontradiction with extrinsic prooE is nutpermitted.Therefore, if an accused is asked oncross-examination about some collateralconduct, his answer is not subject to contradiction.In Alemnder 17. State, 740S.W.2d 749, 761 (Tex.Cr.App. 1987), arape-murder case, the prosecutor knewthat, when the testifying defendant purchaseda gun a month before the murder,he failed to mention his two prior felonyconvictions. On cross-examination, theprosecutor asked the defendant whether hewas the "sort of person who would lie."The defendant replied, "I try not to be."Thereafter, the prosecutor was permitted toelicit the false gun application from thedefendant. The court reversed the conviction,holding that, "The State cannot openthe door to matters not othenvise admissibleand then prove up. the collateralevents, unless the events themselves wereindependently adnlissible." In Moreno v.State, 711 S.W.2d382 (Tex. App.-Houston[14th Dist.] 1986), the defendant wascharged with attempted murder after attackinga police officer with a knife. Oncross-examination, and over objection, thedefendant was asked if he had owned gunsand had fued them within the apartmentcomplex where the offense occurred. Afterthe defendant denied these questions, theprosecutor was permitted to call witnessesto contradict him. This was held to be improperimpeachment on a collateral matterinjected into the case for the first time bythe prosecutor on cross-examination. Seealso, Slripnmn v. State, 604 S.W.2d 182(Tex.Cr.App. 1980); Mueldin v. State. 308S.W.2d 36 (Tex.Cr.App. 1957); Clark lrState, 693 S.W.2d 35 (Tex.App. - Houston[Ist Dist.] 1985); Smtlia~n 1,. State,683 S.W.2d 89 (Tex. App. - Dallas1984).Opening the Door:TheTroublewith"Trouble"However, all ofthese protections vanishif the careless accused makes a "blanket"statement on direct examination whichcreates a false impression of the blanlelessnessof the accused's life. The Colut ofCriminal Appeals has heldnumerous timesthat:An exception to this general mle[prohibiting the admission of otherwiseinadmissible extraneous offensesto impeach a defendant-witness]arises when a witness, during directexamination, leaves a false inipressionastotheextentofeitherhis prior(1) arrests (2) convictions (3) chargesor (4) "trouble" with the police.Ochoa v. State, [481 S.W.2d 847,850 (Tex.Cr.Ap., 1972)l.When the accused leaves such a falseimpression during his diict examination,he is commonly said to have "opened thedoor" to an inquiry by the State as to thevalidity ofhis testimony. That is, the Stateis allowed, duringcross-examination,todowhat it could not otherwise do. That is,dispel the false impression left by the accusedas to his past, a subject which isusually anirrelevant issue, collateral to thecase, and thus inadmissible. Prescott v.State. 744 S.W.2d 128, 131 (Tex.Cr.App.1988) (Footnote omitted.)When the doorhas been opened, theprosecutor may not only pursue the matteron cross-examination and elicit the informationnecessary to dispel the false impressionthere, but she may also introduceextrinsic evidence of the contradictingfacts if the defendant does not concedethem on cross. In Ex Parte Carter, 621S.W.2d 786 (Tex.Cr:App. 1981), after thedefendant admitted only two prior convictionsand two prior arrests on direct, theprosecutor was alIowed to elicit thedefendant's 13 other arrests from anotherwitness. And in Gi1111ore 1,. State, after thedefendant said on direct that he "would notand had not committed" an anned robberyinthat conmunity, theprosecutorwas heldto have properly been allowed to introducewitnesses who identified the defendant ashaving robbed another store in the samecommunity eight days after the chargedrobbery.Once the prosecutor has questioned theaccused about the extraneous offenses tocorrect a false or misleading statement ondirect, and assuming that the prosecutorhas a good faith basis for thequestions (seein@), the prosecutor is not required to"prove up" the extraneous offenses or"trouble" if the accused denies the priortrouble. Nelson v. State, 503 S.W.2d 543(Tex.Cr.App. 1974). However, if the othermisconduct is denied, and proofsuch asthedefendant's "pen packet" is not properlypresented, the prosecutor should beprevented from making any further referenceto the collateral nusconduct.Whether the door has been opened tocontradiction with all four kinds of prooflisted in Prescott depends largely on thesweep of the blanket statement and thequestions to which it responds. Prescott,supra. The broadest question will createthe greatest potential for a misleadinganswer. For example, in Bell v. State, 620S.W.2d 116 (Tex.Cr.App. 1981), the accusedwas asked by his counsel if he haddone anything of a cri~ninal nutvre in hispast. After the defendant revealed only oneprior felony conviction, the prosecutorwaspermitted to question about two misdemeanorconvictions and his arrests andindictments for two robberies. Because thedefendant 'was asked such a broad question,the answerimplied that the one felonyconviction he mentioned was the only"thing of a criminal nature" in his past.This, of course, was not true. Had thedefendant been asked only whether he hadany prior felony co~~victions, his answerwould have been true and, arguably, notmisleading. See also, Nelson Ir State, 503S.W.2d 543 (Tex.Cr.App. 1974);Alesunder s. Sfare, 476 S.W.2d 10 (Tex.Cr.App. 1972); Heartfield v. State, 470S.W.2d 895 (Tex.Cr.App. 1971); and Barrrettv. State, 445 S.W.2d 205 ' (Tex.Cr.App. 1969). In all ofthese cases, thedefendantwas asked whether he had ever been"in trouble" before, and he either respondedwith a flat, "No," or he recountedsome, but not all, of his "trouble" with thelaw. This led the court ineach case to holdthat the defendant had opened the door toa fuller inquiry into his record.It is clear that some defendants believethat they are safe in denying or onuttingreference to arrests and nunor convictionswhen asked overly-broad questions. Theymust bedisahused ofthis erroneous notion,. .June 1989 1 VOICE for the Defense 15